“…beginning to anchor the damages starting with voir dire and opening statement will get the jury thinking about the severity (or lack thereof) of a case from the get-go…” – A tested viewpoint from this week’s Law Tips faculty contributor, Michael Phelps. I appreciate him sharing a sample of his advice on “Using Anchoring to Blackboard Damages In A Catastrophic Case From A Plaintiff’s Point of View:”

Confronted with the difficult task of determining damages by assessing the damage done to a plaintiff, jurors look for guidance from trial counsel. Counsel can use the psychology of “anchoring” to help, or push, the jury to an award.

It appears that jurors may latch onto an “anchor” that provides a starting point that will, in the end,help them reach an award. In the courtroom jurors will listen to the most important “anchor,” trial counsels’ recommendations. Here in Indiana, the law permits, almost without limitation, trial counsel to argue for any monetary amount. In fact, a few years ago a defense attorney filed a motion in limine to attempt to prevent me from arguing damages on a “per diem” basis (something I Never do anyway). The court’s response to the motion was to tell the movant that, “Mr. Phelps can ask the jury for whatever he wants – if he asks for $100.00 and a unicorn, he may do so at his own peril.”

The judge’s response was well taken, as all trial counsel must be critical of what she asks for – as it will be at her “own peril.” But beginning to anchor the damages starting with voir dire and opening statement will get the jury thinking about the severity (or lack thereof) of a case from the get-go.

As studies by authoritative psychologists have shown in the real world, anchors are used by everyone and can be grounded and ungrounded estimates. For example, the asking price for a house reflects the characteristics of the property and the wishful thinking of the prospective seller. In the courtroom, the anchors that attorneys offer to the jury can also be derived from relevant information grounded in case facts and from ungrounded wishful thinking and blatant attempts to affect damage awards, which is the goal of the trial lawyer.

Anchoring Starts in Voir Dire

Use voir dire to condition the jury in a catastrophic case by making sure you begin on a somewhat somber note. For example, I typically start voir dire on a soft-tissue case by jokingly asking the jury, “Who doesn’t want to be here right now?” Usually a couple of hands go up. Then I remind the jury that they are under oath and, after a bit of jury chuckling, a few more hands go up. At which time I thank the jury for their service and explain the importance of jury duty in America rather than the way many parts of the world settle less serious disputes by taking to the streets with AK-47’s. That’s also a form of anchoring on a small case-it makes the case seem extremely important if other cultures will kill each other other over a similar dispute.

In the catastrophic case, I’ll explain to the jury that I usually start the process with a joke, but today I’m not because we’re here because my client is: dead, paralyzed, had his arm cut off, blind, etc. because of the incident (wreck, work injury… ). Immediately you have begun to anchor your damages by conditioning the jury to understand that the case is catastrophic.

Also in voir dire in the catastrophic case, I will usually, at towards the end of my examination, pick a favorable juror, tell them that jury verdicts are anonymous and follow up with this question: “Would you be comfortable with a verdict that might make local, state, national, international news?” Again, the jury is already thinking that the case is catastrophic. Once the jurors are assured they will remain anonymous, I’ve yet to have a juror state they would not be willing to serve.

Finally in voir dire, I thank the jury for their time and convey that this is the plaintiff’s only chance for justice, emphasizing the importance of the trial on the life of the plaintiff. Usually, by this time, the jurors who are reluctant to serve see their own importance in our judicial system and lose the feeling that they “don’t want to be there.”

Thanks to Michael Phelps for his valuable insights on anchoring your presentation with jurors. He completes his instructions during the CLE “Presenting Catastrophic Damages At Trial” with several scenarios for using anchors in opening statements and closing arguments. Mike emphasizes the benefits of reconfirming your anchors each step of the way through the trial so that the jury is comfortable with the points you have made beginning in voir dire. He summarizes with the following succinct statement:

Successful use of anchoring throughout a trial can greatly increase the jury’s propensity to award a catastrophically injured plaintiff a good verdict. Use of this technique should bear fruit in any trial where there are serious injuries.

Our Law Tips faculty member:Michael Phelps, has practiced with the Ken Nunn Law Office in Bloomington, Indiana, since 2005. He graduated from Indiana University, B.S., 1995 and Capital University, J.D., 1998. Mike was a litigation attorney in Marion County and has extensive trial and appellate experience. He is admitted to practice before the U.S. Seventh Circuit Court of Appeals, the U.S. District Court for the Northern and Southern Districts of Indiana, and the Indiana Supreme Court. He is also a member of the Multi-Million Dollar Advocates Forum.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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